Fenuel and Graham
[2008] FamCA 386
•22 April 2008
FAMILY COURT OF AUSTRALIA
| FENUEL & GRAHAM | [2008] FamCA 386 |
| FAMILY LAW – CHILDREN FAMILY LAW – INJUNCTIONS FAMILY LAW – CONTRAVENTIONS |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Fenuel |
| RESPONDENT: | Ms Graham |
| FILE NUMBER: | MLF | 3707 | of | 2000 |
| DATE DELIVERED: | 22 April 2008 |
| PLACE DELIVERED | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Carter J |
| HEARING DATES: | 18 & 19 October 2007 and by written submissions |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kirkham QC with Mr Thompson of Counsel |
| SOLICITOR FOR THE APPLICANT: | Gadens Lawyers |
| FOR THE RESPONDENT | In person |
Orders
That for the personal protection of the children, namely, S born … November 1995; R born … July 1997; and J born … July 1999 (“the children”), the wife be and is hereby restrained by herself, her servants and agents from:
(a)approaching within 100 metres of the children or any of them;
(b)attending at or within 100 metres of the children’s place of residence at …, K, or any other place where they may reside;
(c)attending at or within 100 metres of any school or synagogue attended by the children or any of them;
(d)attending events or functions (including but not limited to sporting events, parent/teacher interviews and schools or extra-curricular activities) at which the children or any of them could be reasonably expected to be present;
(e)contacting, communicating with or attempting to contact or communicate with the children or any of them in any manner and without limiting the generality of this order the restraint extends to contact or communication by telephone, text message, sms message, written mail and electronic mail or other electronic communication
AND IT IS NOTED THAT this order is for the personal protection of the children and a breach of these orders or any of them attracts the power of arrest without warrant pursuant to s 68C of the Family Law Act 1975 (Cth) (“the Act”).
That for the personal protection of the husband, the wife be and is hereby restrained by herself, her servants and agents from:
(a)approaching within 100 metres of the husband;
(b)attending at or within 100 metres of the husband’s place of residence at …, K, or any other place where he may reside;
(c)attending at or within 100 metres of any place where the husband may be employed or any synagogue attended by the husband;
(d)contacting, communicating with or attempting to contact or communicate with the husband in any manner and without limiting the generality of this order the restraint extends to contact or communication by telephone, text message, sms message, written mail and electronic mail or other communication
AND IT IS NOTED THAT these orders are for the personal protection of the husband and a breach of these orders or any of them attracts the power of arrest without warrant pursuant to s 114AA of the Act.
That the wife’s Form 1A and Form 2A Responses both filed 18 September 2007 be dismissed.
That there is a determination that the wife has contravened par 1(a) of the orders made 26 March 2007 in that:
(a)she telephoned and spoke to the child, S, on 15 September 2007; and
(b)she communicated with the child, S, via email between 13 September 2007 and 17 September 2007; and
(c)she communicated with S “on line” using MySpace.com and msn.com (internet websites) at various times between 31 August 2007 and 18 September 2007.
That pursuant to s 70NEB(1)(f) of the Act the wife contribute the sum of $2,000 towards the husband’s costs incurred in the proceedings under Div 13A of Pt VII of the Act, with payment to be made within six months of this day.
That there is a determination that the wife has contravened par (1)(a) of the orders made 26 March 2007 in that she sent three emails to the husband on 18 September 2007.
That no sanction be imposed upon the wife under s 112AD of the Act for the contravention referred to in par 6 hereof.
Save as aforesaid and save for any questions of costs the followings applications filed by the husband be dismissed:
(a)his Form 1 and Form 2 Applications both filed 11 December 2006;
(b)his Application – Contravention filed 8 October 2007; and
(c)his Reply filed 16 October 2007.
Save as aforesaid, this matter be removed from the list of cases awaiting determination.
IT IS NOTED that publication of this judgment under the pseudonym Fenuel & Graham is approved pursuant to s 121(9)(g) of the Family Law Act 1975(Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 3707 of 2000
| MR FENUEL |
Applicant
and
| MS GRAHAM |
Respondent
RESERVED REASONS FOR JUDGMENT
Introduction
In one way or another these proceedings are all about three children:
S, now aged 12; R, now aged 10; and J, now aged eight.
The main issue to be decided is whether the children’s mother (for convenience referred to as “the wife”) should have any form of contact with those children. The children's father (for convenience referred to as “the husband”) contends she should not and that she should continue to be restrained by injunction from so doing.
The wife wants to spend time with the children. Orders which are presently in existence preclude this.
The husband also alleges that the wife contravened certain orders made 26 March 2007 which in broad terms and on an interim basis restrained the wife from approaching, contacting or communicating with any of the children and the husband. The issues here are whether or not the wife contacted or communicated with the husband and S.
The wife has basically not had face-to-face time with the children since December 2004.
General Background
The husband was born in September 1951 and he is presently aged 56 years. The wife was born in December 1972 and she is presently aged 35 years. Cohabitation commenced in June 1994 and marriage took place in December 1996. Final separation occurred on 18 January 2000 and a divorce was granted on 9 May 2001.
The husband remarried in September 2001 and his wife is Mrs Fenuel, the children’s stepmother. The marriage subsists.
The wife remarried in July 2003. Her husband is or was Mr T. That marriage has broken down but I am not aware whether or not a divorce has been granted. In August or September 2004 the wife commenced cohabitation with a Mr F. The wife’s evidence in the present proceedings is that Mr F was convicted of drug related offences in April 2005 and sentenced to a term of imprisonment. She has further deposed that he was released on parole in January 2006 after which they “quickly became reacquainted”. The wife’s further evidence was that it took her “some months” to extricate herself from this relationship and “a long time to extricate (Mr [F]) from her life”, adding that she obtained an Apprehended Violence Order on 18 April 2007 against him at the Local Court at Kiama. According to the wife’s evidence there have been four breaches of the order and as a consequence Mr F has been imprisoned.
The husband andthe stepmother have a daughter E, now aged five, and another daughter, N, who is now just a little over two.
The wife has a daughter P, who will be three next June.
Following extensive litigation, a trial commenced before me on 5 December 2005. The principal issue was what, if any, “contact” the wife should have with the children. The trial continued until 9 December 2005 and it was adjourned part heard. The husband and the wife were both represented by senior and junior counsel and the children were separately represented. The husband was the only one of the witnesses called on his behalf who was required for cross-examination by counsel for the wife and the Independent Children’s Lawyer. A number of witnesses had been interposed by agreement and by 9 December 2005 there were only two remaining witnesses. One of those was the wife’s sister, and the other was Dr E, a psychiatrist. Another witness, whose evidence was relied upon by the husband was Ms B. Ms B is a consultant psychologist and she was appointed to prepare a Welfare Report on 7 June 2001. Subsequently she was appointed pursuant to s 65L of the Family Law Act 1975 (Cth) (“the Act”) to supervise compliance with proposed arrangements as part of consent orders which were made. Later when further proceedings were issued in November 2003 the husband and the wife, together with their respective solicitors, agreed that Ms B’s role should return to one where the purpose was the preparation of a Welfare Report. Ms B prepared a number of reports. She gave evidence in the trial and was cross-examined.
When the matter resumed on 10 April 2006, Senior Counsel for the wife informed me that the wife sought to withdraw from the proceedings. In due course leave was granted, the wife withdrew and so did her counsel. Thereafter, the matter continued on an undefended basis. I heard submissions from counsel for the husband and the children’s lawyer. Applications for costs had been foreshadowed and in due course submissions were filed on behalf of the Independent Children’s Lawyer and the husband in that regard. The wife replied to those submissions.
I delivered a reserved judgment on 7 June 2006. Relevantly to the present proceedings the effect of the orders was that all three children were to continue to reside with the husband who was to have sole parental responsibility for the children’s long-term and day-to-day care, welfare and development. Furthermore, and in accordance with the husband’s application, the question of contact between the children and the wife was reserved.
The Hearing
On 1 October 2007 Dessau J adjourned all of the then extant proceedings to a two-day hearing before me to commence on 18 October 2007. Her Honour also listed the matter for mention before me on 9 October 2007. By that stage, the husband had filed the contravention proceedings which had been given a return date of 22 October 2007. At the mention, the wife appeared in person by telephone link, leave having been granted for this by her Honour. Mr Thompson of counsel appeared on behalf of the husband.
There is a transcript of the proceedings of that day on the Court file.
Relevantly for present purposes, I made orders by consent abridging time to enable the husband’s application alleging contraventions by the wife to be heard on 18 October 2007 and I vacated the hearing date of 22 October 2007. Procedural orders were made for the filing of certain documents.
The wife had not at that stage been personally served with the documents relevant to the contravention proceedings. In discussions designed to ascertain the time likely to be required to determine all the applications, the wife was warned of her “right to silence”. There were also discussions about further affidavit material which both parties sought to file and the wife was urged to be careful in the affidavit material she might choose to put before the Court, given the proceedings alleging contravention.
At the mention on 9 October 2007 I determined, after hearing submissions and after discussion, that the proceedings due to start on 18 October 2007 would commence with the determination of the contravention application and I would then, to the extent possible, deal with the other applications which sought both interim and final orders.
The parties filed further material in accordance with the program I had set out on 9 October 2007.
The wife filed three affidavits, one of which she had herself affirmed on 16 October 2007. In preparation for the trial I commenced to read that affidavit but stopped doing so after a few lines when I formed the view that the affidavit was probably in reply to the husband’s affidavit filed 8 October 2007 in support of his contravention application. At the commencement of the trial I made both parties aware of this.
On my enquiry the wife told me that she wished to obtain advice from the Duty Solicitor and with the willing acquiescence of the husband’s legal practitioners the case was stood down to enable this to be done. When the case resumed the wife told me that she had obtained legal advice and as a consequence sought leave to withdraw her affidavit affirmed 16 October 2007. She acknowledged that she understood that the effect of this would be to withdraw that affidavit for all purposes. Leave was granted without opposition.
I then proceeded to hear the contravention proceedings and in the event found the allegations proven. I will, in due course, set out further detail and my reasons for so doing. I reserved the question of penalty until after the determination of the other applications.
Those applications were inextricably interwoven. The husband sought, in broad terms, that the wife be restrained, among other things, from any form of contact or communication with the children. The wife sought in her applications and amongst other things, to spend time with the children and to communicate with them by telephone and written and electronic mail. The acceptance of one party’s case therefore required refusal of the case of the other party.
By agreement, and after discussion, the husband’s case commenced first.
Mr Kirkham had earlier identified the written material, including affidavits.
Documents Relied On
The husband had filed and relied on:
·His Applications filed 11 December 2006 seeking interim and permanent injunctions which in broad terms sought that the wife be restrained from any form of contact or communication with the children and himself. It is convenient to note here that he subsequently sought that the injunctive relief be extended to preclude contact or communication with his wife, the children’s stepmother.
·His own affidavit filed 11 December 2006 in support of his application for injunctive relief (“the husband's first affidavit”).
·His further affidavit filed 24 September 2007. This affidavit was also in support of his application for injunctive relief and it was in this affidavit that the husband sought to extend the injunction to include restraints from approaching, contacting, communicating with or telephoning his wife,the stepmother, and further that the injunction against the wife have attached to it a power of arrest (without warrant) pursuant to s 114AA(1) of the Act. This affidavit will be referred to as “the husband’s second affidavit”.
·His application filed 8 October 2007 alleging contravention of orders made on 26 March 2007.
·An affidavit in support of the Contravention Application filed 8 October 2007 (“the husband’s third affidavit”).
·His reply filed 16 October 2007 in which he sought the dismissal of the wife’s Form 1A Response filed 18 September 2007.
·His affidavit filed 16 October 2007 (“the husband’s fourth affidavit”). This affidavit dealt with, and to a certain extent repeated, matters set out in his earlier affidavits and also stood as his evidence in relation to his opposition to the wife’s application for parenting orders. It was in the nature of a trial affidavit.
·The affidavit of Mr Jay Walker filed 26 September 2007. Mr Walker is a solicitor with the care and conduct of the husband’s file in these proceedings. The wife did not seek to cross-examine Mr Walker.
·The affidavit of his wife,the stepmother, filed 16 October 2007.
·An Affidavit of Personal Service upon the wife of the Contravention Application and documents which had been sworn on 12 October 2007. Leave was granted for this affidavit to be filed. The wife confirmed that there was no issue about service of these documents having been effected on her on 11 October 2007.
·My Judgment delivered 7 June 2006.
·Orders I made on 26 March 2007 and a transcript of proceedings of that day.
Counsel for the husband had prepared written submissions and a closing address which it had been anticipated would have been given in the proceedings which took place before me in 2005/2006. It was cross-referenced to the transcript of those proceedings. The written submissions remain on the Court file and a copy was provided to the wife by the husband’s solicitors prior to the commencement of the proceedings, the subject of this Judgment, it having been decided that further written submissions would be prepared which would, for the sake of brevity, make reference to the earlier submissions. These latter submissions were provided to the Court and also to the wife. The document will also remain on the Court file.
The Court Book which had been prepared on behalf of the husband for the purposes of the earlier trial in 2005/2006 was also provided.
After the Contravention proceedings were determined, I was also provided with a Chronology, detailing the wife’s communications with the husband and the children, helpfully cross-referenced to the husband’s affidavits filed for the purposes of the present proceedings. This document will also remain on the Court file.
During the course of final submissions I invited Senior Counsel for the wife to make submissions in relation to penalty, having earlier determined that the wife had contravened the order made 26 March 2007. As will be seen it had been suggested that the wife should enter into a bond. I raised with counsel the terms of s 70NEC(5) and advised that there were two unreported (at that stage) decisions which might impact on his submissions. Leave was granted to make short written submissions in light of those authorities. The husband’s submissions were filed on 30 October 2007. The wife was also invited to make submissions as to penalty and she was provided with copies of the authorities. No response was received from the wife. Eventually, on 13 December 2007 my Associate communicated with the wife at my request, reminding her of her entitlement to make written submissions in reply to those filed on behalf of the husband and suggesting she give serious consideration to so doing. After some initial confusion was clarified, the wife advised she did not wish to make any further submissions. The husband’s submissions remain on the Court file.
As will be seen, the wife elected not to cross-examine the husband during the proceedings relating to the alleged contraventions. She did however cross-examine him andthe stepmother in the other proceedings.
The wife has filed and relied on:
·Her responses by way of Forms 1A and 2A filed 18 September 2007.
·Her affidavit filed 18 September 2007 in support of those applications.
·An affidavit by her aunt, Ms P filed 16 October 2007. This witness was not required for cross-examination.
·An affidavit by her employer Mr … filed 16 October 2007. This witness was also not required for cross-examination.
The wife chose not to give evidence in the Contravention proceedings and did not call evidence from any other person in those proceedings. She was cross-examined during the other proceedings.
The Contravention Proceedings
Background
On 26 March 2007, on the husband’s application and notwithstanding the wife’s opposition, I made the following orders:
“(1)That until further order the wife, both personally and by her servants and/or agents be restrained from
(a)approaching, contacting, communicating with or telephoning the husband or the children of the marriage [S] born […] November 1995, [R] born […] July 1997 and [J] born […] July 1999 at his or their place of residence, namely, […], or any school, synagogue or other place they or any of them may be;
(b)knowingly being at or within one kilometre of the husband’s and children’s said residence or any school, synagogue or other place they may be; and
(c)causing or permitting any person to engage in the conduct prohibited by this order.
(2)That the husband’s Form 1 and Form 2 Applications, both filed 11 December 2006 be adjourned to 1 October 2007 at 10am with liberty to both parties to apply for an earlier listing upon seven days’ written notice being given to the other.”
In as much as the order relates to the children of the marriage, it is an “order under this Act affecting children” within the definition contained in s 4 of the Act, given that it was made pursuant to s 68B of the Act.
The order which deals with restraints imposed with respect to the husband as an “order under this Act” within the definition contained in s 112AA, being an injunction granted by the Court under s 114 of the Act.
There is a transcript of the proceedings of 26 March 2007 on the Court file.
The wife appeared in person on that day and Mr Thompson appeared on behalf of the husband. The wife had a few days earlier faxed certain documents to the husband’s solicitors which she confirmed she wished to file with the Court. The matter was stood down to enable the wife to consult with the Duty Solicitor and when the matter resumed she confirmed she had had some legal advice. She still sought to file material and in order to determine whether or not she should have leave I looked at that material. On examination it became apparent that the wife not only opposed the husband’s application for injunctive relief but sought to bring further proceedings of her own relating to the children. There were a number of documents handed up to me which seemed to be intended to be annexures although they had not been in fact attached to the wife’s material. In short, neither her application nor the affidavit was in proper form. I refused the wife leave to file the material in those circumstances.
The wife confirmed that she would bring an application to renew her relationship with the children. I had been provided with written submissions on behalf of the husband and Mr Thompson spoke to those submissions. I enquired whether the husband would be prepared to accept an undertaking from the wife in the terms set out in his application pending her filing an application in proper form. However, Mr Thompson pressed for injunctive relief.
The wife opposed the injunctive relief. I told her that the material which she had sought to file, which I had read as I have already recorded, effectively demonstrated that she admitted the matters complained of with some minor exceptions. I told her further that it seemed likely that I might need to make orders as sought until such time as she could put further material before the Court and/or persuade the Court that she should be able to spend time with the children and renew her relationship with them.
I declined to make the orders sought on behalf of the husband as final orders given that the wife had indicated she would be bringing her own application. It was by no means clear how long the wife would need to bring her application before the Court and it was, of course, necessary to adjourn the proceedings to a specific date. In order to allow the wife sufficient time to prepare her documents, noting that she was a self-represented litigant, I determined to adjourn the matter for about six months with liberty to both parties to apply for an earlier listing upon seven days’ written notice being given to the other. I had at first contemplated bringing the matter back to Court in about a month’s time, however, given that the wife was unrepresented I was concerned that she might not be ready at that stage. Accordingly, and so that there could be the certainty of a specific date for the return to Court, I made the orders as detailed. I have to say that I had anticipated that the matter would return to Court much earlier than in fact it did, however there was no application for an earlier listing.
As I have already recorded, the husband’s application for contravention was filed on 8 October 2007.
The Husband’s Allegations
The husband alleged that:
·the wife telephoned and spoke to S on 15 September 2007 in contravention of par (1)(a) of the orders I made on 26 March 2007 (“the first allegation”);
·the wife communicated with S via email between 13 September 2007 and 17 September 2007 in contravention of par (1)(a) of the orders I made on 26 March 2007 (“the second allegation”);
·the wife communicated with S on-line using MySpace.com and m s n.com, “internet websites”, at various times between 31 August 2007 and 18 September 2007 in contravention of par (1)(a) of the orders I made on 26 March 2007 (“the third allegation”); and
·the wife communicated with the husband by email at 11:04pm, 11:11pm and 11:13pm on 18 September 2007 in contravention of par (1)(a) of the orders I made on 26 March 2007 (“the fourth allegation”).
Procedure at Hearing
The procedure in r 21.08 was followed. I informed the wife of each of the four allegations and asked her whether she wished to admit or deny each of the allegations. The wife denied the first allegation and admitted the second and third allegations. As will be seen I have dealt with these allegations in any event. When I advised her of the fourth allegation, the wife told me that she had sent the husband an email but was not certain of the date and I determined that I would deem this to be a denial of the allegation.
The husband was called and affirmed. He confirmed that the contents of his affidavit filed 8 October 2007 were true and correct and that he had nothing further to add. The wife advised that she did not wish to cross-examine the husband. She confirmed that she understood the consequences of this.
I asked the wife to state any response she wished to make to the allegations. She responded to the first allegation and the effect of what she said from the Bar table was that S had telephoned her at about 11:00pm (I infer she distinguished this from a situation where the wife initiated the call). During the conversation the wife told S that she should tell her father about their communication. S advised her mother of some matters which alarmed her.
The wife responded to the fourth allegation by saying that she had sent some emails to the husband, one of which was sent by accident as she was trying to delete it. The other ones were trying to help S because the wife knew that S was going to go home and tell her father about the communication between S and the wife.
Thereafter the wife told me upon enquiry that she did not wish to give evidence and did not wish to call any other witness to give evidence.
Relevant Legal Provisions — Part VII, Div 13A
The first three allegations which concern the parties’ daughter S are all matters to which Div 13A of Pt VII of the Act applies.
I turn first to the allegations involving S. At the outset, it was made clear by Senior Counsel on behalf of the husband that reliance was placed on sub-div E which deals with less serious contraventions rather than sub-div F which deals with more serious contraventions. I agree that this was appropriate and accordingly will not address sub-div F.
The term “contravened an order” is defined in s 70NAC of the Act and relevantly a person will be taken for the purposes of Div 13A to have contravened an order under the Act affecting children if, and only if, that person being bound by the order, has intentionally failed to comply with the order, or made no reasonable attempt to comply with the order.
The meaning of “reasonable excuse for contravening an order” is set out in s 70NAE which relevantly provides as follows:
“SECTION 70NAE MEANING OF REASONABLE EXCUSE FOR CONTRAVENING AN ORDER
70NAE(1) [Circumstances]
The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
70NAE(2) [Reasonable excuse for contravening an order]
A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b) the court is satisfied that the respondent ought to be excused in respect of the contravention.”
The standard of proof to be applied is set out in s 70NAF which is in the following terms:
“SECTION 70NAF STANDARD OF PROOF
70NAF(1) [Balance of probabilities]
Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.
70NAF(2) [Reasonable excuse for contravening ]
Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.
70NAF(3) [When court may make an order]
The court may only make an order under:
(a) paragraph 70NFB(2)(a), (d) or (e); or
(b) paragraph 70NFF(3)(a);
if the court is satisfied beyond reasonable doubt that the grounds for making the order exist.”
The consequences of failure to comply with orders and other obligations that affect children, in matters involving less serious contraventions are contained in sub-div E. Section 70NEA explains the application of the sub-division and it is in the following terms:
“SECTION 70NEA APPLICATION OF SUBDIVISION
70NEA(1) [Application of Subdivision]
Subject to subsection (4), this Subdivision applies if:
(a) a primary order has been made, whether before or after the commencement of this Division; and
(b) a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention) of the primary order; and
(c) the person does not prove that he or she had a reasonable excuse for the current contravention; and
(d) either subsection (2) or (3) applies;
and, if the primary order is an order for the maintenance of a child, this Subdivision applies irrespective of the period since the current contravention occurred.
70NEA(2) [Where no court has previously made an order in respect of a contravention]
For the purposes of paragraph (1)(d), this subsection applies if no court has previously:
(a) made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(b) under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.
70NEA(3) [Where court has previously made an order in respect of a contravention]
For the purposes of paragraph (1)(d), this subsection applies if:
(a) a court has previously:
(i) made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(ii) under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and
(b) the court, in dealing with the current contravention, is satisfied that it is more appropriate for that contravention to be dealt with under this Subdivision.
70NEA(4) [Serious disregard for obligations under the primary order]
This Subdivision does not apply if, in circumstances mentioned in subsection (2), the court dealing with the current contravention is satisfied that the person who contravened the primary order has behaved in a way that showed a serious disregard for his or her obligations under the primary order.”
The powers of the Court if sub-div E applies are as follows:
“SECTION 70NEB POWERS OF COURT
70NEB(1) [What the court may do]
If this Subdivision applies, the court may do any or all of the following:
(a) make an order directing:
(i) the person who committed the current contravention; or
(ii) that person and another specified person;
to attend a post-separation parenting program;
…
(d) make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;
…
(f) make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division;
…
70NEB(2) [When court may make an order against a person other than the person who committed the current contravention]
The court must not make an order under paragraph (1)(a) directed to a person other than the person who committed the current contravention unless:
(a) the person brought the proceedings before the court in relation to the current contravention or is otherwise a party to those proceedings; and
(b) the court is satisfied that it is appropriate to direct the order to the person because of the connection between the current contravention and the carrying out by the person of his or her parental responsibilities in relation to the child or children to whom the primary order relates.
70NEB(3) [Program provider to be notified]
If the court makes an order under paragraph (1)(a), the principal executive officer of the court must ensure that the provider of the program concerned is notified of the making of the order.
…
SECTION 70NEC BONDS
70NEC(1) [Application of section]
This section provides for bonds that a court may require a person to enter into under paragraph 70NEB(1)(d).
70NEC(2) [Bond for specified period of 2 years]
A bond is to be for a specified period of up to 2 years.
70NEC(3) [Surety and security]
A bond may be:
(a) with or without surety; and
(b) with or without security.
70NEC(4) [Conditions]
The conditions that may be imposed on a person by a bond include (without limitation) conditions that require the person:
(a) to attend an appointment (or a series of appointments) with a family consultant; or
(b) to attend family counselling; or
(c) to attend family dispute resolution; or
(d) to be of good behaviour.
70NEC(5) [Explanation of bond]
If a court proposes to require a person to enter into a bond, it must, before making the requirement, explained to the person, in language likely to be readily understood by the person:
(a) the purpose and effect of the proposed requirement; and
(b) the consequences that may follow if the person:
(i) fails to enter into the bond; or
(ii) having entered into the bond — fails to act in accordance with the bond.”
Discussion
The wife was present when the orders were made on 26 March 2007 and, as already recorded, she had earlier consulted with the Duty Solicitor. During the course of the proceedings she told me:
“I don’t think it’s necessary for an injunction for the fact of the matter that it’s the only time I’ve ever not respected the orders of the Court not to go through those sorts of proceedings. I have shown in the past that I can abide by Court orders … that’s why I’m disputing the injunction, because I don’t really think it’s necessary to have one for me to stop me from doing what I’m not doing – that I haven’t done it for months …”
Later the wife said:
“If an injunction is going to be ruled upon me today, well, then I don’t see the children anyway. I’ll respect your Honour’s orders, and I will go down the pathway of finding orders of contact …”
There is absolutely no doubt in my mind given these statements that the wife understood the nature and effect of the injunctions which were being sought against her. As can been seen, the wife also volunteered that she would respect my orders.
The husband’s evidence in relation to the first allegation is contained in par 4 of his third affidavit. There is nothing inherently incredible or improbable in that evidence.
The husband’s evidence in relation to the second allegation is contained in par 9 of his third affidavit. This allegation concerned email communication by the wife to S between the period 13 to 17 September 2007. Annexure “D” to the husband’s third affidavit is a bundle of emails from the wife to S for that period of time. Two of the emails sent on 16 September 2007 request S to call her mother.
Again, this evidence is not inherently incredible or improbable. It is in any event corroborated by the attachment.
The husband’s evidence in relation to the third allegation is set out in pars 5-8 of his third affidavit. This allegation concerns communications “on line” between the wife and S using websites known as “MySpace.com” and “msn.com”. The husband explained in his affidavit how these websites operated. Attachments “B” and “C” respectively to the husband’s affidavit are copies of the wife’s and S’s MySpace web pages. Further, the husband deposed in par 8 of his third affidavit to being physically present with S at the computer on 17 September 2007. S had logged on to msn.com and whilst he was speaking with S the wife “messaged” her. He then detailed in his affidavit the messages that passed from S to the wife and from the wife to S, as he watched.
Additionally, I note that p 13 of Annexure “D” to the husband’s affidavit is a MySpace message from S to the wife dated 7 September 2007 at 12.40am. The context of that message makes it clear that it was in response to a message sent by the wife to S.
It is the case again that the husband’s evidence was not inherently improbable or incredible.
Prior to the husband being called I explained to the wife the procedure which would be followed. I informed her that she would have the opportunity to cross-examine the husband. After the husband was affirmed he confirmed that the contents of his affidavit filed 8 October 2007 were true and correct. I reminded the wife that she was, of course, entitled to cross-examine the husband. I told her that I did not wish to put restrictions on her cross-examination, but asked her to bear in mind that at that stage the hearing concerned the alleged contraventions. The wife confirmed that she understood this.
The following interchange then took place:
“HER HONOUR: Do you wish to cross-examine?
[THE WIFE]: No, your Honour.
HER HONOUR: Do you understand that, by not cross-examining, the
statements made by [the husband] in his affidavit are unchallenged?
[THE WIFE]: Yes, your Honour.
HER HONOUR: With that knowledge, you confirm that you do not wish to
cross-examine?
[THE WIFE}: Yes, I do, your Honour. I don’t want to cross-examine.”
As can be seen, the husband’s evidence was unchallenged. In Scott (1994) FLC ¶ 92-457 at 80,729-80,730 the Full Court dealt with the acceptance or rejection of unchallenged evidence, saying:
“There is, in Australia, no rule of law that a Judge must accept evidence which is unchallenged: Cross on Evidence, 3rd Australian ed. (1986) - footnote 483 para. 9.66 at 440; and Ellis v. Wallsend District Hospital (1989) Aust. Torts Reports ¶ 80-289 at 69,090; (1989) 17 NSWLR 553 at 588 (per Samuels, JA). However, a number of authorities establish that it may be ‘wrong, unreasonable or perverse to reject unchallenged evidence’ (per Samuels, JA., Ellis v. Wallsend District Hospital, supra at Aust. Torts Reports 69,090; NSWLR 587) and that if an appellate court concludes that it were so, in the particular circumstances of a given case, it may overturn the decision of the primary Judge on the basis of an error of fact, rather than an error of law.
This principle has its foundation in the application of what has been referred to as the second aspect of the so-called ‘rule’ in Browne v. Dunn (1894) 6 R 67, namely ‘a rule relating to the weight or cogency of evidence not challenged by cross-examination’: per Samuels, J.A. in Ellis v. Wallsend District Hospital (supra) at Aust. Torts Reports 69,090; NSWLR 587 and see also Hunt, J. in AlliedPastoral Holdings Pty Ltd v. Commissioner of Taxation (1983) 1 NSWLR 1 at 18. However, it has frequently been recognised that whether or not it is an error of fact for a Judge to reject unchallenged evidence depends very much on the circumstances of the particular case, and the presence or absence of any stated reason for the rejection. For example, it has frequently been said that unchallenged evidence need not be accepted by a Judge if it is inherently incredible or improbable, and the lack of any inherent incredibility in the evidence of the plaintiff in the case of Precision Plastics Pty Limited v. Demir (1975) 132 CLR 362 has been put forward as the explanation for the dictum of Gibbs, J., as he then was, at p. 376 of that case, that the jury was ‘bound to accept’ the plaintiff’s unchallenged evidence that she intended to work until she reached the age of 55 years: see per Samuels, JA. in Ellis v. Wallsend District Hospital (supra) at Aust. Torts Reports 69,089; NSWLR 586. For a further example of the application of this inherent incredibility exception to the second aspect of the rule in Browne v. Dunn (supra), see Levinge v. Director of Custodial Services (1987) 9 NSWLR 546 at 560 per McHugh, J.A.”
As I have already recorded there was nothing inherently incredible or improbable in the husband’s unchallenged evidence which was corroborated in some instances by documents annexed to his affidavit. Furthermore, the wife admitted the second and third allegations. I accept the husband’s evidence in relation to all of the allegations concerning S.
I invited the wife to make submissions. The wife said:
“I would like to say, your Honour, that the order of the injunction is that I did not actually contact my daughter. She contacted me and I actually did enthusiastically tell her to communicate it with her father. I ceased contact with her myself, on my doing.”
The issue is not of course who was the first person to communicate.
I am satisfied that the wife contravened par (1)(a) of the orders made 26 March 2007 in that:
·she telephoned and spoke to S on 15 September 2007; and
·she communicated with S via email between 13 September 2007 and 17 September 2007; and
·she communicated with S on-line using MySpace.com and msn.com (internet websites) at various times between 31 August 2007 and 18 September 2007.
The wife’s statement from the Bar table was, self-evidently, not evidence. Further, it did not raise in my view, in any event, “reasonable cause for contravening” any of the orders in par (1)(a), nor was there any submission that the wife had a reasonable excuse. In my view she did not. I take into account the definition contained in s 70NAE, noting however that the definition is not exhaustive.
Accordingly I am satisfied to the requisite degree that the respondent has without reasonable excuse committed contraventions of an order under the Act affecting children, being contraventions of par (1)(a) of the order made 26 March 2007.
The Fourth Allegation
The husband alleged that the wife communicated with him by email at 11.04pm, 11:11pm and 11:13pm on 18 September 2007 in contravention of par (1)(a) of the orders I made on 26 March 2007.
This allegation is a matter to which Pt XIIIA applies.
Relevant Legal Position Part XIIIA
If the Court is satisfied that a person has, without reasonable excuse, contravened an “order under this Act” it may impose certain sanctions (see s 112AD).
As can be seen there are three elements involved:
·First an order to which Pt XIIIA applies;
·Secondly a contravention of that order; and
·Thirdly, absence of reasonable excuse.
“Order under this Act” is defined in s 112AA, and I am satisfied that par (1)(a) of the orders I made on 26 March 2007 falls within that definition.
The meaning of “contravene an order” is given in s 112AB and relevantly provides that a person shall be taken to have contravened an order “if, and only if;
(a)where the person is bound by the order – he or she has:
(i)intentionally failed to comply with the orders; or
(ii)made no reasonable attempt to comply with the order.”
The meaning of “without reasonable excuse” is given in s 112AC of the Act. It includes but is not limited to the circumstances set out in sub-s (2) which provides:
“112AC(2) [Reasonable excuse: obligations of order not understood]
A person (in this subsection called the respondent) shall be taken to have had a reasonable excuse for contravening an order under this Act if:
(a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b) the court is satisfied that the respondent ought to be excused in respect of the contravention.”
The Court must be satisfied that the breach was intentional, that is to say deliberate as distinct from inadvertent, but there need not be proof of contumacious behaviour (see Fauna Holdings v Mitchell (2000) FLC ¶ 93-053).
The onus of proof is the civil standard, namely the balance of probabilities, having regard to the gravity of the allegation (see s 140 of the Evidence Act 1995 (Cth); Briginshaw (1938) 60 CLR 336).
The available sanctions which are open to the Court to impose are set out in s 112AD(2) and they are as follows:
“112AD(2) [Available sanctions]
The sanctions that are available to be imposed by the court are:
(a) to require the person to enter into a bond in accordance with section 112AF; or
(b) to impose a sentence by order on the person, or make an order directed to the person, in accordance with section 112AG; or
(c) to fine the person not more than 60 penalty units; or
(d) subject to subsection (2A), to impose a sentence of imprisonment on the person in accordance with section 112AE.”
Discussion
I repeat that the wife was present when the orders were made on 26 March 2007 and that she had earlier consulted with the Duty Solicitor.
I have earlier recorded certain of the discussions which took place on that day. Whilst that was focussed on injunctions in respect of the children, the content of that discussion makes it clear that the wife did understand the nature and effect of the injunction which restrained her from communicating with the husband, as well as with the children.
The husband’s evidence in relation to the fourth allegation is contained in par 14 of his second affidavit and Annexure “E” sets out the communications by email referred to in that paragraph. Mention is also made of this event in par (10) of his third affidavit and again Annexure “E” sets out the content of the emails.
This evidence is not inherently incredible or improbable and is corroborated by the attachment.
As earlier recorded, the wife elected not to cross-examine the husband. The earlier discussion about Scott’s case where the Full Court dealt with the acceptance or rejection of unchallenged evidence is relevant also to the fourth allegation. I accept the husband’s evidence in relation to the fourth allegation.
As I have earlier noted the wife responded to this allegation by saying that she had sent some emails to the husband, one of which was sent by accident as she was trying to delete it. The other ones, according to the wife, were “trying to help [S] because the wife knew that [S] was going to go home and tell her father about the communications between [S] and her mother.
The statements were from the Bar table and self-evidently, were not evidence. Moreover they were not borne out by the evidence which was before the Court.
In par 54 of his fourth affidavit the husband referred to an email which the wife sent to him at 8:42pm on 1 October 2007. In par 55 the husband recorded that he received another email from the wife one minute later at 8:43pm which read “Sorry i didn’t mean to send that, i honestly didn’t”. (Original spelling.)
As a consequence, I conclude that this is the email to which the wife referred. The husband has not relied on this communication as constituting a breach of the orders.
The effect of the wife’s other assertion was that she was trying to help S because she knew that S was going to tell her father that she had been in communication with her mother. However, this is not borne out by the evidence.
Annexure “E” to the husband’s second affidavit at p 11 makes it clear that S sent an email to her mother at 9:38pm on 16 September 2007 in which she said:
“Mum, i have something to tell you.
i told my Dad he found when you sent the email to [Mrs Fenuel] he prob not gonna do any thing … I hope your not mad … im not aloud to speak to you until you do the aplicaton …”. (Original spelling.)
As can also be seen from the same page of this Annexure the wife responded to S at 6:32pm on 17 September 2007 saying:
“im not angry love im proud of you … ” (Original spelling.)
I reject the wife’s explanation. Her emails to the husband were sent on 18September 2007, after the other two emails.
Accordingly I am satisfied to the requisite degree that the respondent, without reasonable excuse, contravened par (1)(a) of the orders made 26 March 2007 in that she sent three emails to the husband on 18 September 2007.
Sanctions
I dealt with the other applications before I returned to the question of sanctions, however, it will make for a more orderly judgment if I record at this stage my conclusions.
Breach of Orders Affecting S
I have already acknowledged my agreement with the submissions made on behalf of the husband that it is appropriate to deal with this matter in accordance with sub-div E of Div 13A Pt VII of the Act.
I have earlier set out the powers of the Court granted by s 70NEB(1). I accept the husband’s submissions to the extent that the Court should endeavour to impose a sanction that will reinforce the seriousness of the wife’s conduct in breaching the order of 26 March 2007 and also to militate against future breaches.
I take into account that the second and third contraventions were not isolated events and involved a series of communications with S by various means which continued over some weeks. Indeed, in my view, there is no doubt that the communications would have continued if the husband had not found out about them and if S herself had not taken the step eventually to delete the wife’s details from her lists of contacts on msn.com and “blocked” further communications from her mother.
I also take into account the inappropriate nature of many of those communications and that the communications in any event were covert and placed S in a situation where she was required to keep secrets from her father. I also take into account that the communications adversely impacted upon S.
These matters call for the imposition of a penalty.
The husband submitted that the appropriate penalty in all the circumstances was for the Court to require the wife to enter into a bond with a condition that she attend a parenting program. In the written submissions as to penalty, it was submitted that if the wife agreed to enter into a bond the Court should impose additional conditions, namely that the wife should undertake to comply with orders of the Court and comply with the conditions of the bond.
It was also submitted that if the wife did not agree to enter into a bond then the Court should consider making an order directing the wife to attend a post-parenting program pursuant to s 70NEB(1)(a) of the Act as well as an order for the payment of some or all of the costs of the husband incurred in respect of the contravention proceedings pursuant to s 70NEB(1)(f) of the Act.
In the written submissions as to penalty, the husband foreshadowed an application for costs against the wife and set out the quantum of those costs incurred in the prosecution of the contravention application. The costs were said to have been calculated according to the relevant Scale and totalled $3,367.65. The submissions also set out the factors said to be relevant as to costs.
The submissions conclude by contending that the wife should be restrained from bringing any application before the Court until such time as the order for costs (presuming it was made) was satisfied, in order “to reinforce the imposition of the penalty and payment of costs”.
The wife has not responded to the husband’s written submissions as to penalty.
It will be recalled that leave was granted to make written submissions as to penalty after I raised with counsel, during the course of the final submissions, two authorities which had potential relevance to the submission that the wife should be required to enter into a bond. The first of those cases was Elspeth & Peter; Mark & Peter and John & Peter (Penalty and Costs) which has now been reported at (2007) FLC ¶ 93-341. The judgment is a judgment of the Full Court comprising Faulks DCJ, Kay and Penny JJ and it was delivered on 13 September 2007. The second case was Mazzotti & Aldridge [2007] FamCA 1183, a decision of Faulks DCJ given 5 October 2007.
In the reported case, the Full Court formed the view that it would be appropriate to require the mother to pay the father’s costs of the contravention proceedings pursuant to s 70NEB(1)(f), and to enter into a bond for a period of twelve (12) months in the sum of two thousand and five hundred dollars ($2,500) without security pursuant to s 70NEB(1)(d), with a condition of the bond being that the mother be of good behaviour and comply with the orders of the Court.
The Full Court, however, went on to note that there was “a difficulty” with the requirement that the mother enter into such a bond. They drew attention to s 70NEC(5) which I have earlier set out. This section requires the Court to explain the purpose and effect of the proposed requirement to enter into a bond and the consequences that may follow if the person fails to enter into the bond, or having entered into it, fails to act in accordance with it (amongst other things).
As the Full Court noted it is fairly self apparent that in the event that the mother failed to act in accordance with the bond, the sum promised by the bond might become the subject of forfeiture, however the members of the Full Court went on to observe that if the mother failed to enter into the bond, the precise consequences that would flow were not so readily identifiable.
The Full Court went on to discuss the history of the relevant sections of the Act and amendments thereto which dealt with contraventions. It was noted that when the Act was first passed in 1975 s 70(6) clearly spelt out the consequences of failing to enter into a recognisance. However when the Act was amended in 1989 by the insertion of Pt XIIIA, although the requirement that the Court explain the purpose and effect of the recognisance and the consequences of failure to enter into a recognisance or breach of a recognisance was introduced, the amendments did not introduce any provisions detailing the actual consequences of failure to enter into, or breach of a recognisance. The Full Court noted the explanatory memorandum to the amending Bill which noted that the consequences of “failure to comply with the recognisance” was that the breach could be dealt with under the (new) s 112AD as a breach of an order under the Act, however, no guidance was provided as to the consequences of not entering into a recognisance. The Full Court noted that presumably “the Court could impose a more serious penalty if the contemnor refused to enter into the recognisance”.
The Full Court then considered the amendments made when the Act was amended by the insertion of Div 13A into Pt VII. The Court’s powers were limited to directing persons to attend parenting programs and making compensatory orders, in cases involving a first proven contravention, provided that it did not show a serious disregard for obligations under the primary order. For subsequent or more serious contraventions the Court was empowered (amongst other things) to require a person to enter into a bond. In relation to more serious contraventions the Court was required to explain the consequences that might follow if the person failed to enter into a bond, or having entered into a bond, failed to act in accordance with it.
Section 70NN (as it then was) set out the procedure and consequences where a bond was contravened without reasonable excuse however there was no equivalent section which outlined the consequences were a bond was not entered into. Again, as the Full Court noted, it could be assumed that the consequence would be to impose an alternate available sanction. However, as the Full Court stressed, the section relating to consequences of failing to act in accordance with a bond was applicable only to more serious contraventions.
As the Full Court recorded, the present form of the Act arises from the amendments made in 2006 and the ability to require a person to enter into a bond was introduced in relation to less serious contraventions (sub-div E of Div 13A of Pt VII). Again, the Court is required to explain the consequences of not entering into a bond and of failing to act in accordance with it. However, as the Full Court noted there is no provision which outlines the consequences of failing to act in accordance with a bond, nor is there any section which sets out the consequences of failing to enter into a bond in relation to less serious contraventions (or more serious contraventions for that matter). The Full Court observed at 81,839:
“32.It seems to us curious that the present legislation, when dealing with a less serious contravention, still requires the Court to provide an explanation of the consequences that may follow if a person who is required to enter into a bond fails to do so, but does not set out or explain anywhere what those consequences might be. We are unable to discern what those consequences might be.
33.That being so, even though in this case the mother has indicated that her faith does not in any way prevent her from entering into an undertaking with the Court to do all actions to affect (sic) compliance with the Court orders, if we were to require her to enter into such a bond we could not meet our legislative obligations to explain to her the consequences of her failure to do so, other than to say that there are no apparent consequences. In the circumstances it seems pointless to create an obligation that is likely to be ignored.”
In the event the Full Court found that the only effective way of dealing with the proven contravention was to require the mother to make a contribution towards the father’s costs and to remind the mother that any further proven contravention might be dealt with under sub-div F of Div 13A of Pt VII, and might attract a fine or a period of imprisonment.
Faulks DCJ followed this decision of the Full Court in his unreported decision in Mazzotti & Aldridge saying that:
“8. … (The decision) illustrates the difficulties associated with the imposition of a bond in what appears to be an error in the legislation (or at least an absurdity) in that s 70NEC requires that a Court proposing to impose a bond explain the consequences of entering into the bond to the respondent but also the consequences of his or her failing to enter into the bond. Because of the apparent failure to harmonise the provisions of the Act in essence a court would be required to say to a respondent there are no consequences for your failing to enter into the bond but I propose to order you to enter into it and if you do the consequences of your breaching the bond will be as follows. It seems unlikely that many bonds would be successfully entered into.”
The submissions made on behalf of the husband have set out par 33 of the Full Court’s decision and par 8 of the decision of Faulks DCJ and invite the Court to adopt the following approach in respect of penalty:
“5. It is submitted the Wife should be asked if she is prepared to enter into a bond. If she agrees the Court has an obligation to explain:
(a)her obligations pursuant to the conditions of the bond;
(b)if she does not wish to enter into a bond there are no apparent consequences.” (My emphasis.)
However, to my mind, this does not resolve the difficulty. With respect I agree with the members of the Full Court that “it seems pointless to create an obligation that is likely to be ignored”. Further, pursuant to s 70NEC(5) the Court is required to explain the purpose and effect of the proposed requirements to enter into a bond, and the consequences that might follow if the respondent fails to enter into a bond or having entered into the bond, fails to act in accordance with the bond before making the requirement.
As seen, in Elspeth & Peter; Mark & Peter and John & Peter (Penalty and Costs) the Full Court also drew attention to the fact that sub-div E (unlike sub-div F) does not contain any section which outlines the consequences of failing to act in accordance with a bond. There would be no apparent consequences, unless for example the wife was required to enter into a bond promising payment of a sum of money which might become the subject of forfeiture in the event of non-compliance with the bond and its conditions. That is not sought in the present case.
Accordingly, I do not propose to make an order requiring the wife to enter into a bond.
I turn then to look at the remaining relevant orders open to me under s 70NEB. Whilst I have power to make an order directing the wife to attend a post-separation parenting program, I do not believe that this is appropriate. The wife’s behaviour demonstrates a need for professional treatment for her psychiatric or psychological disorder, or her personality problem and in my view a post-separation parenting program will not assist her.
I am empowered by s 70NEB(1)(f) to make an order requiring the wife to pay some or all of the costs of the husband incurred in the contravention proceedings. I am invited to do so by the husband and I propose to do so. I have already recorded the matters which I find should be taken into account and which, in my view, require the imposition of a penalty. An order requiring the wife to contribute towards the husband’s costs is the only effective way of dealing with these contraventions.
It was submitted that the provisions of s 117 of the Act are not matters which are to be considered under s 70NEB(1)(f) when making orders for costs as a penalty for contravention and reliance was placed on the observations of Faulks DCJ at par 37 of Mazzotti.
It is correct that Faulks DCJ doubted that s 70NEB(1)(f) called into effect the provisions of s 117 of the Act, and indeed there is no reference to s 117. However, I do also note that Faulks DCJ also chose to turn to the provisions of s 117, no doubt as a precautionary measure, and I propose to do the same.
The matters relevant to the present case are those set out in sub-par (a) (financial circumstances); sub-par (d) (proceedings necessitated by failing to comply with orders); and sub-par (e) (whether any party has been wholly unsuccessful) of s 117(2A).
Whilst I have very limited information as to the wife’s financial circumstances it is clear on her evidence that she is in employment. She has an obligation to support her child P and I do not know whether P’s father is contributing towards that support. She has described herself in her affidavit as being “completely exhausted of finances” and without the financial means with which to pay ongoing legal costs or to engage in further litigation with the husband. She has described the husband’s financial resources as “virtually endless”. This latter is to my mind hyperbole although it is fair to say that the husband is a man of significant means, who conceded as much in the earlier proceedings. The husband remains responsible for the support of the three children who are the subject of these proceedings, and additionally the husband andthe stepmother are responsible for the care of their two children.
In the earlier proceedings I made orders which required the wife to pay costs which totalled just under $96,000. It is proper to take that into account. In the earlier proceedings I found that the wife had significant assets. According to the wife’s Financial Statement filed 10 May 2006 her nett worth was approximately $2.8 million. I am unaware of what the wife’s current asset position is, save for the matters which she set out in her affidavit which I have already noted. Even so there would be to my mind, a great disparity between the financial circumstances of the husband and the wife.
It is the case, as was submitted, and indeed it is self-evident, that the contravention proceedings were necessitated by the wife’s failure to comply with Court orders.
It is also the case, again as was submitted, that the wife was wholly unsuccessful in the contravention proceedings.
On balance, and notwithstanding the financial disparity between the financial circumstances of the parties, I am satisfied that there are circumstances which justify an order being made against the wife.
The costs claimed by the husband total $3,367.65 and the wife has not disputed that quantum. In order to given recognition to the disparity in the parties’ respective financial situations however I propose to fix the costs in the sum of $2,000. I will further grant the wife a period of six months from the date of these orders to make the payment.
In order to avoid doubt I make it clear that, whilst I have had regard to the provisions of s 117 of the Act, this order is made pursuant to s 70NEB(1)(f). It is also appropriate to remind the wife that any further proven contraventions may be dealt with under sub-div F of Div 13A of Pt VII and may attract a fine or a period of imprisonment.
Breach of Order Affecting the Husband
As I have already recorded this contravention falls within Pt XIIIA of the Act.
I have earlier set out the powers that the Court is granted by s 112AD(2) and I note that there were no specific submissions as to which of the sanctions available under that section should be imposed.
One of the available sanctions is imprisonment, however such an order must not be made unless the Court is satisfied that it is not appropriate for the contravention to be dealt with pursuant to any other of the alternative sanctions (see s 112AE(2)). Imprisonment is generally regarded as being a course of last resort and in my view, it is not an appropriate sanction in this case.
It is convenient to note here that s 112AG provides the Court may impose other sentencing alternatives, however, in my view, they are not appropriate in the circumstances of this case.
The Court has the power to require a person to enter into a bond.
If the Court proposes to require a person to enter into a bond, it must, before making the requirement, explain the purpose and effect of the proposed requirement and the consequences that may follow if the person fails to enter into the bond or having entered into it, fails to act in accordance with it. (See s 112AF(5).) It can be seen that this section is in terms almost identical with s 70NEC(5).
Division 2 of Pt XIIIA is similar to sub-div E of Div 13A of Pt VII in that it contains no provisions relating to the consequences of failing to enter into a bond and further, it does not outline the consequences of failing to act in accordance with a bond.
For the same reasons which led me to decline to require the wife to enter into a bond in relation to the contraventions relating to S, in my view, I should also not make an order requiring her to enter into a bond as a sanction for failing to comply with the order of 26 March 2007 in as much as it related to the husband.
The remaining sanction is the imposition of a fine which must not be more than 60 penalty units. The definition of “penalty unit” refers back to the Crimes Act 1914 (Cth) and as far as I am aware it presently provides that one penalty unit equates to $110.
Again, it is appropriate to endeavour to impose a sanction which reflects the seriousness of the wife’s conduct and also which will militate against future contraventions.
In my view, the breach in question is not nearly as serious as were the breaches of the orders relating to S. Further, the breach took place on one day only. It is also appropriate, in my view, to take into account the fact I have already imposed a monetary penalty upon the wife for the breaches of the orders relating to S.
However, the wife must understand that she is obliged to comply with Court orders and that this is another occasion where she did not do so.
Upon reflection I am inclined to the view that the imposition of the penalty in relation to the contraventions involving S will go a considerable distance towards ensuring that the wife does not contravene any orders of the Court, not just the orders relating to children. In those circumstances, and given that there were no submissions on behalf of the husband in respect of this particular contravention, it appears to me that it would be appropriate to exercise my discretion not to impose any sanction under s 112AD(2). I will, however, record my finding as to the breach of the order.
The wife should bear in mind that the Court would not be likely to deal with any further breaches of Court orders in the same manner.
Other Matters
As seen, it was submitted on behalf of the husband that the wife should be restrained from bringing any application before the Court until such time as any order for costs was satisfied. In my view, I do not have power to make any such order (see Watson and Morton (2007) FLC ¶ 93-331). Even if I did have power, however, I would not regard it as being an appropriate course to be undertaken.
The Husband’s Application for Permanent Injunctions against the Wife
The Wife’s Application to spend time and communicate with the Children
The husband seeks orders that the wife and her servants and agents be restrained from:
(a)approaching, contacting, communicating with or telephoning him, his wife, Mrs Fenuel, or the children of the marriage at his or their place of residence or any school, synagogue or other place they may be;
(b)being at or within one kilometre of the husband’s and children’s residence or any school, synagogue or other place they may be;
(c)causing or permitting any person to engage in the conduct prohibited by the order;
(d)that the injunctions have attached “a section 114AA(1) Notation ‘arrest without warrant’.”
The substance of the wife’s application was that the children spend time with her:
(a)each alternate weekend from after school on Friday until the commencement of school on Monday;
(b)for one-half of the children’s school holidays at times to be agreed upon between the parties, but in default of agreement, the first half;
(c)by telephone, written mail and electronic mail; and
(d)at any other time by mutual agreement between the children’s parents.
As I have recorded elsewhere, these applications are intertwined. If the husband’s application for injunctive relief against the wife having contact or communicating with the children is permitted, then the wife’s application must fail. The converse applies also.
Legal Principles
Injunctive Relief
Section 68B of the Act deals with proceedings for injunctions in relation to children. Section 68B provides as follows:
“68B(1) [Types of orders and injunctions]
If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i)a parent of the child; or
(ii)a person with whom the child is to live under a parenting order; or
(iii)a person with whom the child is to spend time under a parenting order; or
(iv)a person with whom the child is to communicate under a parenting order; or
(v)a person who has parental responsibility for the child; or
(c)an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of the child; or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i); or
(d)an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of a person referred to in paragraph (b); or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i).
68B(2) [Interlocutory order]
A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
68B(3) [Terms and conditions]
An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.”
The Court may only make an order or grant an injunction under s 68B(1) if it is satisfied that it is appropriate for the welfare of the child.
The paramountcy principle does not apply to s 68B. Nonetheless, the best interests of the child would usually be a matter of great importance in the exercise of discretion under the section. However, it is still open to the Court to take into account other interests and the child’s interests may not necessarily override those other interests.
Section 114 of the Act deals with injunctions and sub-s (1) is relevant to the husband’s application. It is in the following terms:
“SECTION 114 INJUNCTIONS
114(1) [Types of orders and injunctions]
In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
(a)an injunction for the personal protection of a party to the marriage;
(b)an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;
(c)an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;
(d)an injunction for the protection of the marital relationship;
(e)an injunction in relation to the property of a party to the marriage; or
(f)an injunction relating to the use or occupancy of the matrimonial home.”
In broad terms the Court is given the power to issue injunctions in appropriate circumstances. The term “proper” has been defined as meaning “reasonable and just in the circumstances”. (See for example Page (1981) FLC ¶ 91-025.)
The husband also seeks an order under s 114AA of the Act. Pursuant to this section if an injunction is in force under s 114 for the personal protection of a person then a police officer may arrest without warrant the person against whom the injunction was granted. The officer in question must first form the belief on reasonable grounds that the person to whom the injunction is directed has breached the injunction by causing or threatening to cause bodily harm to the person protected by the injunction, or by harassing, molesting or stalking such person. It can be seen that a power of arrest attaches automatically to an injunction under s 114 made for the personal protection of a person (Cauchi (1994) FLC ¶ 92-447). A similar power of arrest is given by s 68C if there is an injunction in force under s 68B for the personal protection of a person. Pursuant to s 68C(2) however, an injunction granted under s 68B will only be an injunction “for the personal protection of a person” if it is expressed in that way.
The Wife’s Application
The wife’s application is for parenting orders. Such proceedings fall within Part VII of the Act.
The fundamental principle in deciding whether to make a particular parenting order in relation to a child is that the Court must regard the best interests of the child as the paramount consideration.
Section 60B sets out the Objects of Part VII and the underlying principles. The Objects are set out in s 60B(1) and those Objects are to ensure that the best interests of children are met by:
“(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The principles underlying those Objects are set out in s 60B(2) which provides that except when it is or would be contrary to a child’s best interests:
“(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).” (Emphasis added.)
In determining what is in the child’s best interests the Court must consider the primary and additional considerations set out in s 60CC(2) and (3).
Section 61DA(1) provides that when making a parenting order the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. This presumption relates solely to the allocation of parental responsibility. Parental responsibility is defined in s 61B. The presumption does not concern the amount of time a child spends with each parent and the presumption does not apply in certain circumstances.
Pursuant to par (3) of the orders I made on 7 June 2006, the husband has sole parental responsibility for the children’s long-term and day-to-day care, welfare and development. However, and even though no order is sought by the wife for parental responsibility, the presumption in s 61DA still applies whenever the Court is “making a parenting order in relation to a child”, unless this presumption is rebutted or inapplicable for one of the reasons specified.
If a parenting order provides, or is to provide, that a child’s parents are to have equal shared parental responsibility for the child then, pursuant to s 65DAA(1) the Court must consider whether equal time is in the best interests of the child and is reasonably practicable. If the Court finds in the affirmative, then the Court is required to consider making an order which provides for the child to spend equal time with each parent.
If the Court does not propose to make an order that the child spends equal time with his or her parents, then the Court is required to consider whether spending “substantial and significant time” with each of the parents is in the best interests of the child pursuant to s 65BAA(2). The question of whether this is reasonably practicable is also a matter which the Court is required to consider. The Court must then consider an order for substantial and significant time. This term is defined in s 65DAA(3).
The question of “reasonable practicability” is dealt with in s 65DAA(5). Under this section the Court must have regard to:
“(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.”
During the course of these Reasons reference will be made to earlier orders and for convenience the terminology relevant and used at those times for children’s orders will be repeated.
Mrs Fenuel had also filed an affidavit on 13 May 2005 and she, too, was not required for cross-examination. I referred to that affidavit in my Reasons for Judgment given 7 June 2006 saying:
“[57][Mrs Fenuel] swore an affidavit which was filed on 13 May 2005. She was not cross-examined. She has set out in that affidavit in detail the daily household routine and this commences at paragraph 10 of the affidavit. Relevantly commencing at paragraph 17 of the affidavit she set out changes in the children since the time they commenced to reside in the husband’s household. In paragraph 18 the situation which existed prior to the suspension of the shared parenting arrangement is also set out. In paragraph 19 [Mrs Fenuel] set out what she described as the ‘negative legacy of the shared parenting days’. She and the husband both give instances of how the wife has denigrated each of them to the children, and how the wife’s behaviour not only exposed the children to risks associated with her lifestyle but negatively impacted upon the children’s welfare.”
In the same affidavit the stepmother deposed the children “have a blossoming but fragile sense of security and sense of being looked after now”. She went on to say later that the children at that stage had enjoyed seven months of stability, security, sufficient food to eat always, an absence of drugs and unsavoury persons in their life. She repeated that the children were showing signs of knowing that they were safe. She observed that their schoolwork was improving as was their attitude and expressed the view that if the children were to spend time again with their mother, she was quite certain that they would lose the gains that they had made.
The husband expressed similar concerns in his affidavit filed for the purposes of the earlier proceedings.
In his fourth affidavit, filed for the purposes of the current proceedings, the husband deposed that the children have rarely spoken of their mother in the years which have passed since they ceased spending time with her, and when they did, they recalled episodes of their mother’s “wild living” and “funny ways”. On occasion, the children have spoken of missing their mother and he and the stepmother have followed advice given by Ms B as to how to deal with issues which the children raise. It was his case, and I accept, that the husband and the children’s stepmother have encouraged and fostered good feelings in the children about their mother.
The husband’s evidence was also that S has at times “idolised her mother” making excuses for her shortcomings and personal difficulties. I accept that evidence. I also accept the husband’s belief and concern that reintroducing contact would have the potential to re-awaken the memories of traumatic times for the children, which in turn puts at risk the stability which they came to enjoy.
As I have recorded elsewhere I accept the husband’s evidence that S became secretive, morose and at times very distressed as a result of her mother’s contact with her and also that she returned to intermittent disrespectful, disobedient and difficult behaviour. To my mind this came about particularly because of the wife’s attempts to have a secret relationship with S.
In the present proceedings the wife cross-examined the husband. The evidence he gave was consistent with that in his affidavit. I accept him as a witness of truth. I am abundantly satisfied that the children are in safe hands with him and with their stepmother. In particular, I am satisfied that neither has done anything other than to attempt to foster and maintain a proper relationship between the children and their mother having regard to the difficult circumstances of this case.
The husband freely admitted, when asked by the wife, that it was his belief that S loved her and went on to say that he thought that all the children had warm feelings about their mother which had been encouraged. He added that there was frequent discussion about the good times that the children had had with their mother. He pointed out that S had made a collage of photographs for her forthcoming Bat Mitzvah and he had encouraged her to include in that collage some of the photographs of herself with her mother, when S was a baby.
The husband did not attempt to gild the lily in any way and the household which he describes was “normal”, that is to say one where the children were “normal” and not perfect. He told the wife that S had some sadness about having no contact with her mother which she had discussed with him and gave an example of an occasion when S had been sad when at a school camp, and as a consequence of this and following discussion, he arranged for her to see a counsellor.
Upon enquiry being made by the wife, the husband repeated that there had been “good times” in the past which he reinforced with the children so that they retained good memories of their mother.
The wife then said to the husband:
“Right. Is there anything in your mind, you know, that the good times could be in the future with the kids and their mother? Is that in your thinking, [husband’s name]?”
The husband replied that he hoped that would be the case and said that there were certain things that the wife needed to do in order to achieve that end.
When asked what that might be the husband went on to say:
“You need to have a proper course of drug rehabilitation. You need to have psychiatric treatment. These are all recommendations made last year in this Court. I think it doesn’t help that you live a thousand kilometres away. I don’t understand, if that was a serious attempt at having legitimate contact with the children, why you would do that. So I think there are things that you could do, and that you should do, to have appropriate contact with the children.”
In my view, this was a most perceptive and thoughtful response by the husband and it is one which accords with my own thinking.
It is convenient to refer here to the terms of the wife’s application which, as seen, propose (inter alia) that she spend time with the children on alternate weekends from after school on Friday until the commencement of school on Monday, as well as for half of the children’s school holidays. The wife did say in par 24 of her affidavit that she was prepared to have her time with the children “slowly reintroduced, with the assistance and supervision of a counsellor, if necessary”. Apart from that there is no reference whatsoever to, and no evidence about, how any such regime could or should be implemented. She does not say where time would be spent. The wife has elsewhere in the same affidavit referred to her lack of finances and drawn attention to the husband’s extensive financial resources, and presumably would look to him to pay for the costs of counselling and the costs of the children travelling to Sydney or the wife travelling to Melbourne. The wife does not explain how she could care for the children during school holiday periods, given that she works four days a week. Her proposals, after a “reintroduction”, have clearly not been carefully considered, if at all. At best they are impracticable, given that she lives in Sydney and these children live in Melbourne. To my mind there is again a degree of impulsivity in the proposals coupled with self-indulgence.
Mrs Fenuel set out in her affidavit filed for the purposes of the current proceedings, a vivid picture of life in the husband’s household and the effect on that life of the wife’s attempts to have contact with S. Although lengthy it is important that I set out what she wrote in her affidavit.
“[11] I have an easy and loving relationship with [J] and [R] who often come to me for cuddles and confidences. [S] has been more guarded with me but we have had an attitude of mutual respect. As she has grown up, I have deferred to her father on most questions of schooling, social activities and discipline. I have tried to be as accommodating as possible in relation to her changing social arrangements. I have also encouraged [S] and [the husband] to spend more time one-on-one and to include [S] in activities such as attending [work] functions, musicals or spending time with us and our adult friends. She has close relationships with my best friend […] and her family and with my family – my parents and brother […]. [S] often has friends sleeping over and regular gatherings of up to 10 or so friends at our house. Her best friend […] is a frequent guest in our household – [S] clearly feels happy and comfortable to have her friends in our home. I have been [S’s] preferred person to shop for clothes. She has said words to the effect that she can always rely on me for anything she needs. In the past, [S] has specifically asked that I attend school performances, sports competitions and events such as the model seder (a religious event) – with or without her father. She also told me she appreciated my support for her basketball games last year. As a consequence of [the wife’s] recent contact [S] has again become secretive, morose, hostile and at times distressed. She knows about the most recent SMS her mother sent me, and commented to me that her mother “often does really stupid stuff”. [S] has reverted to intermittent difficult behaviour. After the upheaval of her early childhood it took a long time for [S] to settle and feel safe to be a child rather than the “adult” she felt bound to be in her mother’s household. She is clearly the one most affected by the “horrific” (her mother’s own word) circumstances of her early life. At times she has asked very telling “theoretical” questions about the likelihood of the child of a drug addict becoming an addict themselves, or about whether the effects of a bad childhood are irreparable. When [R] or [J] recall the events of the times with her mother, [S] visibly cringes and leaps to silence them. She is clearly deeply disquieted and conflicted by any mention of her mother. In the short time [the wife] has been in touch with [S], [the wife] has had a profound destabilising influence. She has driven a wedge between [S] and I, sent police and welfare agencies into our home and the children’s schools, urged [S] to run away and fostered an environment of distrust and secrecy. I am concerned if [the wife] continues to communicate with [S], it will cause [S] unnecessary distress and anxiety and seriously impact upon the peace and stability of the children’s home life.”
The wife cross-examined the stepmother and her evidence was consistent with her affidavit. She presented as a warm, concerned and loving step-parent and one who has a great deal of insight into the three children the subject of these proceedings.
Again, there was no attempt to gild the lily and the picture presented was of a “normal” family with what the stepmother described as the “normal issues families have”. However, and relevantly, she pointed out the children in question “come with a particular set of very damaging baggage” and that it was S, who was by far the most affected.
Mrs Fenuel told the wife that the evidence of the contact which had taken place over the last month or so prior to the hearing was that it had been “very, very destructive”. She also told the wife that if it were possible for there to be positive communication without any disruption, it would be good for the children, however, that had not been the previous experience.
Again, I find that the stepmother was a witness of truth and I place reliance on her evidence as well as that of the husband.
On all the evidence it is clear that all three children were badly affected by their exposure to the mother, particularly in 2004, and her treatment of them. That is particularly so in the case of S, who was clearly the one most affected by her earlier experiences in the wife’s household. To my mind, she is still somewhat fragile and this is demonstrated by the evidence which I accept, of the way S was affected by her mother’s most recent behaviour.
I am by no means convinced that the mother has the insight and capacity to understand how her actions have, and would impact upon the children. I acknowledge that the wife seems to have taken some steps to change her life. I accept that she has continued to care for P, which would be a difficult task given the child’s special needs. I accept that she has been in employment since June 2007 four days each week and I regard this as a very positive matter. I have had full regard to the evidence given by her employer in his affidavit as well as the evidence given by her Aunt in her affidavit. Neither witness was cross-examined.
However, to my mind, this is simply the “beginning of the beginning”.
The question of the wife’s drug addiction remains a worrying matter as well. In par 11 of the wife’s affidavit filed for the purposes of these proceedings she has deposed:
“I discovered that I was pregnant, with [P], in late 2004. By April 2005, I had completely stopped using illegal drugs of any kind.”
In the written submissions filed on behalf of the husband it was pointed out that this statement omitted the contextually important fact that the wife continued to use amphetamines for the first seven months of P’s pregnancy and I accept that this is a relevant and significant matter.
In par 18 of her affidavit the wife deposed that she had not used illegal drugs since May 2005. Again, I agree with the submission made on behalf of the husband that this involved an issue of credibility and it needs to be remembered that in the earlier proceedings the wife swore four affidavits in this regard which she conceded were designed to improve the presentation of her case for contact with the children. It was also the case, as was submitted, that the wife admitted that in the past she had concealed matters of relevance and I agree that it was apparent from the cross-examination in the earlier proceedings as a whole that no faith could be put in her assertions.
As previously noted, I am of the view that the wife needs to address and obtain treatment for her psychiatric or psychological disorder or personality problem.
In the earlier proceedings it was submitted on behalf of the husband:
“In the absence of appropriate treatment and with a history of behaviour referred to in the preceding paragraph the Court should not accept as credible the wife’s current assertions that she has changed to the point that the Court could be confident that she will not repeat the former aberrant behaviour to the potential detriment of the welfare of the children. With continual history of abuse over all types over several years and with no insight as to how this adversely affected the children, and by rejecting treatment calculated inter alia to promote insight she presents an appreciable risk of harm to the children if contact is resumed.”
In the current proceedings it was submitted that those earlier submissions were apposite and I agree.
I am not prepared to put the emotional and developmental gains that these children have made at risk by acceding to the wife’s application to spend time with them, or to communicate with them in any way. Her impulsivity rules out communication by telephone and electronic mail, as does the content of some of the communications forwarded to S. Any written mail would need to be vetted before being passed on to the children for the same reasons. To my mind there could well be dispute over whether the letters were appropriate; the correspondence would be intrusive to the husband’s household; and letters would be at best only of tenuous benefit to the children. On balance written communication should also not be allowed.
In doing this, I have been acutely conscious of the importance to children of their having contact with both of their parents. Even before the Act was amended that situation applied in this Court.
I respectfully agree with Brown J who said in Mazorski v Albright (2007) 37 Fam LR 518:
“[15]… There is no doubt that the objects and principles, primary considerations (and a number of the additional considerations) and various statutory provisions relating to the presumption of equal shared responsibility, and the consequences of the presumptions application, require the Court to focus on the importance of maintaining a meaningful relationship between a child and both parents, and on the importance of a child spending substantial and significant time with a parent in order to achieve that aim.”
However, as is made clear in s 60B(2) the principles which underlie the objects set out in s 60B(1) are subject to the qualification “except when it is or would be contrary to a child’s best interests”. The best interests of the child still remain the paramount consideration. Throughout this judgment the best interests of all three children have been in the forefront of my mind.
I am conscious that, in determining what is in the best interests of these children, I must consider the matters set out in s 60CC(2) and (3), as well as the matters set out in s 60CC(4). Section 60CC(4A) requires me in applying s 60CC(4), to have regard, in particular, to events that have happened, and circumstances that have existed, since the husband and the wife separated. I have done so.
I did not have the benefit of any submissions as to the statutory considerations and I do not propose to address them seriatim. In my view, I have sufficiently addressed the relevant matters in my consideration of this case and in the discussion which has formed part of it.
I will confine myself to observing that ideally both the parents of these children should have a meaningful involvement in their lives. However, the improvement of these children since moving to live with their father and not having any contact with their mother must not be disrupted. The effect upon S of involvement with her mother of recent times demonstrates the dangers inherent in this.
It can be seen that I do not propose to grant the wife’s application. Nor do I intend to make any parenting order. Accordingly, the presumption in s 61DA does not arise in my view. In the event that it did arise, the circumstances of this case, as discussed, provide cogent reasons and evidence rebutting the presumption, satisfying me that it would not be in the best interests of these children for their parents to have equal shared responsibility for them.
If the wife successfully undertakes psychiatric and/or psychological treatment as was earlier recommended she may well be able to play a meaningful role in the lives of these children. On the evidence they are presently not adversely affected by the absence of their mother from their lives. I cannot be confident that the wife will do as has been recommended, but until she does, in my view, the need to protect these children outweighs possible disadvantages to them from not spending time with and/or having no contact with their mother.
Injunctions
I have earlier set out the relevant legal principles and need not repeat them here.
The injunctions which are sought are for “personal protection”. There is no doubt that s 114(1) of the Act permits the Court to grant an injunction for the personal protection of a party (inter alia) and a similar power exists under s 68B(1) in relation to a child.
As Strauss J said in Wilmoth (1981) FLC ¶ 91-030 the power has been construed widely in the sense that it has been used to protect a party not only from abuse or threatened physical or mental harm but also to prevent undue interference by one party with the other (or the children). In Kemsley (1984) FLC ¶ 91-567, the Full Court held that an order might be made for the personal protection of the wife if it prevented the husband from interfering with her employment or business or her social life or if it were designed to safeguard her mental or emotional well being. The Full Court made it clear that the words “personal protection” do not only refer to physical protection but also include matters such as the protection of a party’s right to lead his or her own life without undue interference from the other.
For reasons which are obvious from the discussion elsewhere which led me to conclude that the wife should not spend time with the children or communicate with them in any way, I have formed the view that the injunction as sought is appropriate for the welfare of these children. The injunction is necessary to safeguard the children’s emotional well being and as such is for their personal protection. I refer in particular to the wife’s impulsivity; her letter to S attempting to engage her in a convert relationship; her attendance at the Synagogue; her attendance at S and R’s school; her communications with S which led to the contravention proceedings; the inappropriate nature of many of those communications; and the adverse effect of her actions upon S.
Given that I have determined to dismiss the wife’s application there will be no hardship to her in granting the injunction in respect of the children and in my view the injunctions go no further than is necessary to achieve the protection of the children’s welfare.
In his trial affidavit filed 13 May 2005 for the purposes of the earlier proceedings, the husband and the stepmother set out in detail some of the many occasions in which their life was disrupted by the wife by way of telephone calls, SMS messages and the like.
As a result of the wife’s conduct the husband sought and obtained an intervention order at the Magistrates Court at Melbourne. The orders named the husband and the children as the subject of these proceedings, and the child E as aggrieved family members. The order was made on 6 October 2004. It was not made by consent, however on 6 October 2005 it was extended until 6 October 2006 by consent. The husband did not seek a renewal of that intervention order after its expiry.
As I have recorded earlier the wife sent three emails to the husband on 18 September 2007, in breach of orders which were made on 26 March 2007. The husband’s present concerns are, that unless restrained from so doing, the wife will revert to her previous behaviour which effectively consisted of his household being bombarded with telephone calls and other communications from the wife.
It was submitted on behalf of the husband that the husband’s household was at risk of continued harassment, abuse and interference with the quiet enjoyment of their life, unless the wife were restrained. Further, that the wife’s conduct has caused, and unless she is restrained is likely to continue to cause, emotional harm, distress and upset. Those submissions are to my mind well founded and supported by the evidence. The husband has a right to live his life without being harassed and without having his privacy invaded. There can be no hardship to the wife in granting the husband’s application, nor does it go any further than is necessary to achieve the protection of his interests.
For those reasons I will also grant an injunction in favour of the husband.
The husband also sought that the injunctions include restraints against the wife from approaching, contacting, communicating with or telephoning the stepmother. Whilst I accept that the stepmother has an entitlement to quiet and peaceful enjoyment of her life, I cannot accept that such an order would constitute a valid exercise of the power conferred by s 114(1). It is not an order for the husband’s personal protection and the Court does not have power, in my view, to make an order for the personal protection of the stepmother.
I also note that the stepmother filed a complaint and summons for an intervention order against the wife on 29 September 2005. On the return of that complaint and summons, namely 6 October 2005, the wife gave an undertaking through her solicitor that she would not communicate by telephone or text message with the stepmother and on that basis, and by consent, the complaint was withdrawn with a right of reinstatement. That undertaking is still extant and accordingly the stepmother has its protection. She would also be entitled to apply, if necessary, for other orders against the wife pursuant to the laws of the State of Victoria.
Accordingly, there will be no order made in respect of the stepmother.
Other Matters
The injunctions will not be as worded in the husband’s application but will be adapted to fit the circumstances of this case. That will include specifying some of the various means of contact and communication which will be restrained. That is not intended to affect the generality of the injunctions.
I certify that the preceding three hundred and ninety-two (392) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.
Associate:
Date:22 April 2008
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Breach
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Remedies
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Jurisdiction
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